Daniel Lee Haining v. Thu-Dung Thi Haining ( 2010 )

Opinion issued March 25, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00091-CV

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DANIEL LEE HAINING, Appellant

V.

THU-DUNG THI HAINING, Appellee

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On Appeal from the 308th District Court

Harris County, Texas

Trial Court Cause No. 2006-13649

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MEMORANDUM OPINION

                                                                        Appellant, Daniel Lee Haining, appeals from a decree of divorce dissolving the marriage between himself and appellee, Thu-Dung Thi Haining.

          In four issues, Daniel contends that (1) “[t]he trial court improperly divested [him] of his separate property interest in the Savings Plan and IRA”; (2) “[t]he trial court abused its discretion by awarding a $100,000 penalty against [him] for wasting of community assets and fraud on the community estate”; (3) “[t]he evidence is legally and factually insufficient to support $70,189 in reimbursement to [the] community for waste”; and (4) “[t]he trial court clearly abused its discretion in effectively dividing the community estate 104% to -4% in Thu’s favor.”

          We affirm.

Summary of Facts and Procedural History

          Daniel and Thu married on February 1, 1995. They have no children. Daniel has a bachelor’s degree in electrical engineering and has worked for ExxonMobil since 1989. Thu has a bachelor’s degree in accounting and works as an independent computer consultant. In 1998, they purchased a home in Pearland.

          In 2001, the couple began to experience marital discord. It is undisputed that, in 2003, Daniel began a relationship with Dr. Zhili Fu. Daniel maintains, however, that his relationship with Zhili was, at all times during his marriage, merely a friendship, and he denies that it was ever adulterous.

          Daniel testified that, in October 2003, while at a training class in Florida, he met Zhili through a mutual friend. He and Zhili spent time together touring the city and exchanged telephone numbers. Over the two months that followed, Daniel and Zhili conversed regularly.

          In December 2003, Daniel arranged for Zhili to visit him at his Pearland home. To introduce the idea to Thu, Daniel asked Zhili to send him an email, purporting to be their first contact since the training class. In her email to Daniel, Zhili asked if he remembered her and stated that she would soon be in Houston on business. Daniel forwarded the email to Thu and suggested that Zhili stay with them. Thu testified that, during Zhili’s visit, Thu was uncomfortable with the way Daniel and Zhili were interacting. After Zhili left, Thu asked Daniel not to have any further contact with her, and Daniel agreed.

          Over the two years that followed, however, Daniel and Zhili traveled to visit one another and took several trips together. It is undisputed that, in May 2004, Daniel surreptitiously traveled to Florida to attend Zhili’s graduation from pharmacy school; in October 2004, Daniel flew to Florida and visited Disney World with Zhili, then helped Zhili move to Houston by driving her back with him; in February 2005, at the end of a Disney trip with Thu, Daniel purportedly had to stay in Florida and work and Thu flew home alone, however, Zhili flew in the same day to be with Daniel; and, in September 2005, Daniel and Zhili traveled to Hawaii together.

          Days after Daniel and Zhili returned from Hawaii, Daniel asked Thu to move from their four-bedroom home in Pearland to a condominium in downtown Houston. Ultimately, Daniel and Thu leased a one-bedroom condominium next door, or very near to, Zhili’s condominium.

          In December 2005, Daniel gave Thu a Hummer SUV, which he paid cash for out of their community account. In February 2006, Thu returned from a business trip to find that Daniel was not at home. When she called him, he would not tell her where he was, except to say that he was at a friend’s house. He told her that he had left her Hummer at work, but that he would be home with it the next day. The next day, Thu saw through the panoramic windows of her condo, her Hummer being driven out of the garage at the next-door building. Thu did not confront Daniel that day. Later, rather, Thu went over to the garage and found her Hummer parked next to a car she determined was Zhili’s.

          On February 28, 2006, Thu filed an original petition for divorce, alleging insupportability. In addition, Thu sought a disproportionate division of community property, alleging, inter alia, Daniel’s fault in the break-up, his fraud on the community, and his wasting of community assets. Thu sought reimbursement and attorney’s fees. The same day, Thu filed an affidavit alleging, inter alia, that Daniel had transferred over $275,000 from their joint account at Energy Capital Credit Union (“ECCU”) to “other accounts” that were beyond her “control or access”; that Daniel was similarly transferring other community funds “to places and accounts unknown”; and that Daniel had paid $68,247.58 for a Hummer without her knowledge from funds from their joint checking account and had forged her name to the title and purchase documents. The trial court froze Daniel’s assets.

          Daniel counter-petitioned for divorce, alleging insupportability and cruel treatment by Thu. Daniel also sought a disproportionate share of the community estate, alleging in support, inter alia, Thu’s fault in the break-up, fraud, and wasting of community assets.

          In April 2007, trial to the bench ended in a mistrial. The trial court awarded $26,712.50 in attorney’s fees to Thu and lifted the freeze so that Daniel could withdraw the fees out of the community account at ECCU. Subsequently, the trial court ordered that the Hummer be sold to pay Thu’s additional attorney’s fees and her living expenses. The Hummer was sold for $50,000.

          In July 2007, the case was re-tried to the bench. Daniel, Thu, and Zhili each testified in lengthy detail. Thu testified concerning the events and the property at issue. Thu presented evidence, in the form of an email from Daniel, that Daniel had admitted to her his infidelity and that he had endeavored to conceal his relationship with Zhili. Thu testified that, among other things, on February 15, 2006, Daniel had transferred $20,050 from a joint account into a Wells Fargo checking account in his name; that he had taken $5,000 cash back; and that, the next day, Zhili had flown to China using 30,000 frequent flyer miles that Daniel had acquired through his work travel during the marriage. With regard to the affidavit Thu had filed alleging that Daniel had transferred $275,000 out of their joint account, Thu testified at trial that she knew that the amounts withdrawn had gone to pay off the mortgage on the Pearland house and to buy the Hummer that Daniel had given her.

          At trial, Daniel and Zhili admitted that they had engaged in a relationship with one another, that they had taken the alleged trips to Florida and Hawaii together, and that they had actively concealed these facts from Thu. They each asserted, however, that their relationship was properly characterized as a friendship and that, on each of their trips, they had stayed in the same room, but in separate beds, and they had never expended community funds for their travel expenses, beyond incidental meals. They each testified that Zhili had paid their travel expenses. Daniel testified that he had been dishonest with Thu, that he had concealed things from her, and that she deserved a disproportionate share of the community estate because of his conduct.

          Daniel and Thu each submitted to the trial court an inventory and appraisement, and a proposed property division, which were admitted by agreement.

          In its September 4, 2007 “Rendition on Trial and Property Division,” the trial court granted Daniel and Thu’s petition for divorce “on the grounds of Adultery, Wasting of Community Assets, Fraud on Community Estate, Fault in Breakup of Marriage, Reimbursement, and Attorney’s Fees already awarded.” The trial court accepted as its division of the estate Thu’s exhibit 5a, inventory and appraisement and proposed division of property, with some exceptions. Namely, the trial court ruled that Daniel was to retain $260,000 of the $830,000 in his ExxonMobil Savings Plan, and that Thu would take $570,000. The trial court also awarded,

[f]or wasting of community assets and fraud on community estate: $100,000 to [Thu] from [Daniel’s] estate. Said award shall be out of Exxon Mobil Savings Plan and 401K Plan. Therefore, [Thu] shall receive $670,000 of 401K plan as listed on [Thu’s Inventory & Appraisement], Ex 5a and respondent’s share shall be reduced to $160,000[.]

          In its November 2007 final decree, the trial court divided the marital estate disproportionately, awarding to Thu, among other things, the Pearland house, various household contents, a Corvette pace car, 15,000 frequent flyer miles, and a total of $670,000 from Daniel’s ExxonMobil Savings Plan. In addition, the trial court stated in the decree as follows:

W–7. The Court FINDS that [Daniel] has committed fraud on the community estate and wasted community assets, and IT IS THEREFORE ORDERED that [Thu] is awarded a judgment against [Daniel’s] separate property awarded herein, to be taken as her sole and separate property, a sum total of $70,189.00, together with interest as the maximum rate permitted by law from the date the Court signs this Order, for which let execution issue.

The trial court also “confirmed as the separate property of” Thu “$50,000, payable by [Daniel] to [Thu] at her last known address on day of divorce.” 

          Daniel was awarded the couple’s timeshare in Hawaii, various household contents, a 1998 Lexus, a Sea-doo watercraft, sums in various accounts, $160,000 of his Exxon/Mobil Savings Plan, and certain debts.

          At a hearing on Daniel’s objections to the entry of judgment on the decree, the trial court explained,

Well, what I did was I gave them each a fairly equal and I don’t remember if it was exactly equal on his plan [sic] and as the division of the estate. And then I came back as a penalty and awarded her a hundred thousand of the estate and the rendition of the division of the estate, it was fairly equal. Then I came back as a penalty and awarded her a hundred thousand. [sic]

Daniel asked again, “So that was a penalty?” And, the trial court responded, “Right.”

          The trial court did not file requested findings of fact and conclusions of law, and it denied Daniel’s motion for new trial.  

Findings of Fact and Conclusions of Law

          As a preliminary matter, Daniel contends that the trial court’s judgment should be reversed because it failed to file findings of fact and conclusions of law, as he requested.

          Texas Rule of Civil Procedure 297 provides, in pertinent part, as follows:

The court shall file findings of fact and conclusions of law within twenty days after a timely request is filed. . . . If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all parties in accordance with Rule 21a a “Notice of Past Due Findings of Fact and Conclusions of Law” which shall be immediately called to the attention of the court by the clerk. . . .

Tex. R. Civ. P. 297. 

          When findings of fact and conclusions of law have been properly requested, a trial court’s failure to file findings and conclusions is presumed reversible, unless the record affirmatively shows that the requesting party was not harmed by their absence. Alsenz v. Alsenz, 101 S.W.3d 648, 651–52 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)). If a party is prevented from presenting his case on appeal, he has been harmed. Id.

          Here, Daniel requested the trial court to make findings of fact and conclusions of law; however, the record does not reflect that he filed the requisite notice of past due findings. Failure to file the reminder required by Rule 297 waives any issue concerning the trial court’s failure to file findings of fact and conclusions of law. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 410 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

          Thu contends that the trial court’s failure to file findings and conclusions is fatal to many of Daniel’s contentions on appeal. In Alsenz, the appellant contended that the trial court’s rendition and decree were confusing and that he could not discern what amounts were allowed for the parties’ reimbursement claims. Alsenz, 101 S.W.3d at 652. We held that, because the attachment to the decree clearly identified the nature and source of the couple’s financial assets and debts, the claims for reimbursement, and the proportion of the division, it was possible for us to follow each asset, claim, and debt from its inception to its disposition. Id. Hence, the appellant was not harmed by the absence of findings and conclusions. Id.

          Here, like Alsenz, the decree, in conjunction with the proposed settlement and rendition, clearly identifies the nature and source of Daniel’s and Thu’s financial assets and debts, Thu’s claims for reimbursement, and the proportion of the division. Hence, it is possible for us to follow each asset, claim, and debt from its inception to its disposition.

Standards of Review

          When, as here, a trial court makes no separate findings of fact or conclusions of law, we must presume that the trial court made all the necessary findings to support its judgment. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.) (citing Pharo v. Chambers Co., 922 S.W.2d 945, 948 (Tex. 1996)). We draw every reasonable inference supported by the record in favor of the trial court’s judgment. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). The trial court’s judgment must be affirmed it if can be upheld on any legal theory that finds support in the evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). When the appellate record includes the reporter’s record, the trial court’s implied fact findings are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them. See Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.—San Antonio 1995, writ denied).

          Pursuant to the Texas Family Code, “the trial court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code Ann. § 7.001 (Vernon 2006); Alsenz, 101 S.W.3d at 654. The trial court has broad discretion in dividing the marital property and its division will not be disturbed on appeal unless the complaining party shows that the trial court clearly abused its discretion. Alsenz, 101 S.W.3d at 654–55 (citing Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981)). Under an abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds, but are relevant factors in assessing whether the trial court abused its discretion. Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ).

          To determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court’s decision, we consider (1) whether the trial court had sufficient evidence upon which to exercise its discretion and (2) whether it erred in its application of that discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied).

          Under the first prong, we apply the applicable sufficiency review. Id. In a legal sufficiency review, we consider all of the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. Wilson, 168 S.W.3d at 819. The final test is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. at 827. In a legal sufficiency challenge on an issue on which an appellant bears the burden of proof, he must demonstrate that the evidence conclusively established all vital facts to support the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

          In a factual sufficiency review, we consider all the evidence for and against the challenged finding and set it aside only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). “In a bench trial, the trial court is the sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony.” Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.). “We may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence.” Id. In a factual sufficiency challenge on an issue in which that party had the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

          Under the second prong, we consider whether, based on the evidence, the trial court’s decision was arbitrary, unreasonable, or without reference to guiding rules or principles. In re T.D.C., 91 S.W.3d at 872.

          If we find reversible error that materially affects the trial court’s property division, we must remand the cause for a new division of the community estate. Jacobs v. Jacobs, 687 S.W.2d 731, 732–33 (Tex. 1985).

Division of Property

          In his fourth issue, Daniel contends that “[t]he trial court clearly abused its discretion in effectively dividing the community estate 104% to -4% in Thu’s favor.” Daniel contends that the division is not supported by legally and factually sufficient evidence.

          The record shows that Daniel and Thu, by agreement, each submitted an inventory and proposed property division. However, the proposals are not the same and do not show an agreement between the parties. See Tex. Fam. Code Ann. § 7.006(a) (Vernon 2006). When, as here, the record contains disputed values, we must presume that the trial court valued the property in the amount most favorable to its judgment.

          The record shows that the trial court adopted Thu’s proposed division of the community property with certain changes. The trial court awarded to Thu the Pearland house (which Thu valued at $362,500), various household contents, a Corvette pace car, frequent flyer miles, and $670,000 of Daniel’s Exxon/Mobil Savings Plan. In addition, the record shows that the trial court took into account in its division $70,189 in reimbursement claims, as presented in Thu’s sworn inventory. Daniel was awarded various household contents, a 1998 Lexus, the couple’s timeshare in Hawaii, a Sea-doo watercraft, sums in various accounts, $160,000 of his Exxon/Mobil Savings Plan, and certain debts.

          Using the property values that most favor the trial court’s judgment, as we must, the evidence does not reflect, as Daniel contends, that the trial court awarded Thu “more than 100% of the community estate.” Rather, the evidence reflects that Daniel received community property with a net value of approximately $446,195, or about 27 percent of the community estate. Thu received community property with a net value of approximately $1.2 million, or about 73 percent of the community estate.

          Daniel next contends that the “factors support an equal division.” The trial court is not required to divide community property equally, and we must presume that the trial court properly exercised its discretion in dividing the marital estate. Murff, 615 S.W.2d at 699; Alsenz, 101 S.W.3d at 655. We must uphold the judgment on any legal theory supported by the evidence. Murff, 615 S.W.2d at 699; W.E.R., 669 S.W.2d at 717; Wilson v. Wilson, 132 S.W.3d 533, 537 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). The factors we consider include: (1) the education of the parties; (2) the spouses’ relative earning capacity; (3) their relative financial condition and obligations; (4) the size of their separate estates; (5) the nature of the community property, (6) fault in the breakup of the marriage, and (7) benefits that a party not at fault would have derived from the marriage, had it continued. Murff, 615 S.W.2d at 699; Alsenz, 101 S.W.3d at 655.

          The testimony shows that Daniel and Thu each have bachelor’s degrees. The record shows that Thu’s earnings historically have been higher than Daniel’s. Specifically, in 1998, Thu earned $31,824 more than Daniel earned; in 1999, Thu earned $50,535 more; in 2001, Thu earned $180,997 more; in 2004, Thu earned $107,535 more; and in 2005, Thu earned $67,071 more. This factor militates against awarding a larger proportion of the community estate to Thu.

          Daniel admitted at trial, however, and there is ample evidence in the record to support, that Daniel engaged in an extramarital relationship involving deceit and that he intentionally concealed financial transactions from Thu. Through his testimony at trial, Daniel conceded that he had been “dishonest” and “unfaithful,” and had, for years, maintained a relationship with Zhili that had included surreptitiously traveling to Florida and Hawaii with her and transfers of community funds to Zhili. In addition, the record shows that Daniel convinced Thu to leave their marital home and to move to into a leased condominium in downtown Houston, at a cost to the community estate of $1,700 a month, so that Daniel could live closer to Zhili. Daniel testified that a disproportionate division of the community estate in favor of Thu was appropriate, based on his conduct.

          These are factors tending to favor the disproportionate award. See Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993). The trial court may consider a spouse’s dissipation of the community estate as well as any misuse of community property. Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.] 1993, writ denied); see Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998) (stating that wasting of community assets may be considered). Further, when, as here, one spouse not only deprives the other of community assets, but does so with dishonesty and intent to deceive, the trial court may consider such heightened culpability in its division. Schlueter, 975 S.W.2d at 589; Boaz v. Boaz, 221 S.W.3d 126, 133 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Here, Thu may recover not only her share of the property that existed in the community at the time of the divorce, but also that which was improperly depleted from the community estate. See Schlueter, 975 S.W.2d at 589.

          Daniel specifically complains that the trial court (1) overvalued the Hawaii timeshare; (2) “overvalued the ExxonMobil Stocks/Options” when it accepted Thu’s value of $130,000; (3) failed to credit Daniel for $95,474 in attorney’s fees; (4) charged Daniel for $85,440 in undisclosed liquid assets without sufficient evidence; and (5) “gave a double recovery for fraud when there should have been none at all.”

          In a divorce proceeding, the ultimate and controlling issue is whether the trial court divided the property in a “just and right manner,” pursuant to the Family Code. See Tex. Fam. Code Ann. § 7.001; Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ denied). The valuation of specific property is not an ultimate issue. Rafferty, 903 S.W.2d at 376; Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.] 1992, no writ). Disparate divisions exceeding 70 percent to one spouse and 30 percent or less to the other have been upheld where, as here, the facts so warrant. See Sprick v. Sprick, 25 S.W.3d 7, 14 (Tex. App.—El Paso 1999, no pet.) (holding that award of 77 percent of net assets of community to wife was equitable); Thomas v. Thomas, 603 S.W.2d 356, 358 (Tex. App.—Houston [14th Dist.] 1980, no writ) (holding that 70/30 division did not constitute an abuse of discretion); Cluck v. Cluck, 647 S.W.2d 338 (Tex. App.—San Antonio 1982, writ dism’d); Huls v. Huls, 616 S.W.2d 312 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ); Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex. Civ. App.—Tyler 1977, no writ).

          The issue before us is not whether we might have reached a different decision. The question is whether some evidence of a substantive and probative character supports the trial court’s decision. See Gainous, 219 S.W.3d at 103 (stating trial court’s judgment must be affirmed if it can be upheld on any legal theory that finds support in evidence). Given that the evidence supports the trial court’s judgment, we hold that the trial court did not abuse its discretion in dividing the assets as it did. See Alsenz, 101 S.W.3d at 654–55 (stating that division will not be disturbed on appeal without clear abuse of discretion); Mai, 853 S.W.2d at 618 (stating that, under abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds, but are relevant factors in assessing whether trial court abused its discretion).  

          Accordingly, we overrule Daniel’s fourth issue.

Characterization of Property

          In his first issue, Daniel contends that “[t]he trial court improperly divested [him] of his separate property interest in the Savings Plan and IRA.” Daniel contends that the trial court improperly characterized his ExxonMobil Savings Plan (the “Plan”) as community property.

          The trial court has no discretion to divest a spouse of his separate property. Cameron v. Cameron, 641 S.W.2d 210, 215 (Tex. 1982). Separate property includes property owned or claimed by the spouse before marriage, property acquired by the spouse during marriage by gift, devise, or descent, and recover for personal injuries. Tex. Fam. Code Ann. § 3.001 (Vernon 2006). Such property remains that spouse’s separate property during and after the marriage. Pace v. Pace, 160 S.W.3d 706, 711 (Tex. App.—Dallas 2005, pet. denied).

          Only community property is subject to the trial court’s division. Osborn v. Osborn, 961 S.W.2d 408, 413–14 (Tex. App.—Houston [1st Dist.] 1997, writ denied). “Community property consists of the property, other than separate property, acquired by either spouse during marriage.” Tex. Fam. Code Ann. § 3.002 (Vernon 2006). Property possessed by either spouse during or upon the dissolution of their marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006).

          To overcome the community property presumption, a spouse claiming assets as separate property is required to establish their separate character by clear and convincing evidence. Id. § 3.003(b); McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied). “Clear and convincing” evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); Slaton v. Slaton, 987 S.W.2d 180, 182 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of legal and factual sufficiency review. In re J.F.C., 96 S.W.3d at 265–66; In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

          The spouse claiming separate property must trace and clearly identify the property claimed to be separate. Boyd, 131 S.W.3d at 612 (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)). Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Id. (citing Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied)).

          The inception of title doctrine fixes the character of property interests at the time the party first acquires a right or claim to the property; title need not be vested at such time. See, e.g., Stavinoha v. Stavinoha, 126 S.W.3d 604, 613 (Tex. App.—Houston [14th Dist.] 2004, no pet.). “Separate property will retain its character through a series of exchanges” if the party asserting separate ownership traces the assets back to property that, because of the time and manner of acquisition, is separate in character. Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex. 1975). If the evidence shows that separate and community property “have been so commingled as to defy resegregation and identification, the community presumption prevails.” Hanau, 730 S.W.2d at 667. Any doubt as to the character of property should be resolved in favor of the community estate. Boyd, 131 S.W.3d at 612.

          a.       The Plan

          Daniel presented, as his evidence of his separate interest in the Plan, (1) exhibit 21, Plan statements dated February 1, 1995 through December 1996; (2) exhibit 22a, which Daniel refers to as his “tracing document”; and (3) his testimony.

          Daniel and Thu married on February 1, 1995. Daniel presented a Plan statement dated February 1, 1995 (“Statement”) as evidence of his separate property interest in the Plan. Daniel contends that the Statement shows that he owned 779 shares as his separate property prior to marriage.   

          The Statement reflects a series of columns, each depicting a number of trustee’s shares, and includes a column titled, “Total shs/units,” which reflects the total trustee’s shares. The total of the trustee’s shares, as reflected in the table (4 + 315 + 460) is 779. Although the trustee’s shares figures are not preceded by dollar signs, the figure under the “Total shs/units” column is preceded by a dollar sign. The trial court concluded that Daniel’s interest was $779, rather than 779 shares. Daniel complained in the trial court that the dollar sign was simply a typographical error; however, the court refused to consider his contention. Ten days after trial, Daniel submitted an affidavit from the custodian of records for the Plan, explaining the error. The affidavit states, “These schedules inadvertently and incorrectly had dollar sign inserted under the column ‘Total shs/units.’ The number under that column should not have read as a dollar amount, but rather as the total number of shares owned.” A corrected schedule appears in the clerk’s record. On appeal, Daniel complains that “[t]he trial court relied on an immaterial formatting error in the Savings Plan statements and determined that the 779 shares were not shares, but dollars.”   

          Our review of the record shows that we need not resolve this issue because, as Thu contends, Daniel conceded in his motion for new trial that the Statement was, nevertheless, inaccurate with regard to the number of shares. In his motion for new trial, Daniel stated, “The savings plan balances were calculated from the wrong date; they should have been calculated effective January 31 of the year in question, not February 1.” More importantly, Daniel conceded, “The difference in the date resulted in an inaccuracy as to the actual number of shares—that is, it showed more shares in the plan than actually were in the plan as of January 31 of each year.” Hence, Daniel failed to carry his burden to establish his separate property interest by clear and convincing evidence.

          The Statement also reflects a loan balance of approximately $20,000 against the account, which Daniel testified was taken prior to marriage, affected the actual balance of the account, and was not paid back until after he and Thu married.

          Daniel also submitted, as evidence of his separate property interest, his own computations, exhibit 22a, to which he referred at trial as his “tracing document.” Daniel testified at trial, however, that his computations in the tracing document were based on the 779 shares reflected in the February 1, 1995 Statement. The record shows that Daniel has conceded that the 779 shares reflected in the Statement is inaccurate. Hence, we cannot conclude that the trial court erred by implicitly concluding that Daniel’s tracing document did not constitute clear and convincing evidence of Daniel’s separate property interest.

          Daniel contends on appeal that, without regard to the Statement or the tracing document, his testimony at trial was sufficient to establish that 779 shares constituted his separate property. Daniel testified that he was employed at Exxon and participated in the Savings Plan for six years prior to February 1, 1995, the date he married Thu; that he owned 779 shares of stock on that date; that, in 1997 and 2001, the shares underwent two, two-for-one stock splits; and that his interest became 3,116 shares. Mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption. Boyd, 131 S.W.3d at 614–17; Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); McElwee, 911 S.W.2d at 188. Moreover, the record reflects that Daniel has conceded that an interest of 779 shares prior to marriage is inaccurate. Hence, we cannot conclude that the trial court erred by implicitly concluding that his testimony did not constitute clear and convincing evidence of his separate property interest.

           Daniel also contends that the total value of the Plan at the time of trial, July 6, 2007, was $810,250; that his separate property interest was $285,473; and that the community property interest was $524,777. As Thu contends, however, Daniel does not direct us to anyplace in the record in which he raised these calculations in the trial court. Hence, nothing is presented for our review. See Tex. R. App. P. 33.1.

          The record shows that the trial court accepted, as the value of the Plan at the time of trial, the sum of $830,000. The court ordered that Daniel take $260,000 and that Thu take $570,000. We cannot conclude on this record that the trial court erred. Daniel did not overcome the presumption that the Savings Plan constituted community property. Further, Daniel did not provide clear and convincing evidence of a separate property interest.

          b.       Wells Fargo IRA

          Daniel also contends that the trial court abused its discretion by divesting him of his Wells Fargo IRA, which he owned before marriage. The record shows that Daniel testified that the Wells Fargo IRA is his separate property. The record shows that Daniel’s Wells Fargo IRA is included in Thu’s inventory and appraisement as a community asset and that it was awarded to Daniel as part of his portion of the community property. The final decree does not mention the IRA or award any interest in the IRA to Thu.

          Here, again, Daniel’s testimony that the IRA is separate property was insufficient to rebut the community presumption. See Boyd, 131 S.W.3d at 616. Moreover, to prevail on a mis-characterization challenge, Daniel must establish not only that the trial court erred, but that this error caused sufficient harm to constitute an abuse of discretion. See Long v. Long, 234 S.W.3d 34, 37 (Tex. App.—El Paso 2007, pet. denied) (mis-characterization of community property as separate property is not reversible unless mis-characterization had more than de minimis effect on just and right division). Daniel has not made any attempt to meet his burden to show that he was harmed by having been awarded the IRA in lieu of any other property. See Magill v. Magill, 816 S.W.2d 530, 533 (Tex. App.—Houston [1st Dist.] 1991, writ denied).

          Accordingly, Daniel’s first issue is overruled.

Reimbursement

          In his third issue, Daniel contends that “[t]he evidence is legally and factually insufficient to support $70,189 in reimbursement to [the] community for waste.”

           In its decree, the trial court found that Daniel committed fraud and waste, and it ordered that Daniel pay, “from his separate property awarded herein,” $70,189 to Thu, to be taken as her separate property, as follows:

W–7. The Court FINDS that [Daniel] has committed fraud on the community estate and wasted community assets, and IT IS THEREFORE ORDERED that [Thu] is awarded a judgment against [Daniel’s] separate property awarded herein, to be taken as her sole and separate property, a sum total of $70,189.00, together with interest as the maximum rate permitted by law from the date the Court signs his Order; for which let execution issue.It is well-settled that a trial court may award a money judgment to one spouse against the other to achieve an equitable distribution of the community estate. Schlueter, 975 S.W.2d at 588. A trial court may award damages for a spouse’s wasting of community assets or fraud on the community; however, such personal judgment is a means of recoupment and is not awarded as independent damages. Id. at 589. An injured spouse may recoup not only her share of the property existing in the community at the time of the division, but also that which was improperly depleted from the community estate. Id.

           A party may bring a claim for reimbursement of payments by one marital estate to satisfy unsecured liabilities of another marital estate. A trial court resolves claims for reimbursement under equitable principles. An equitable right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex. 1982). The party seeking reimbursement has the burden of pleading and proving that the expenditures were made and that they are reimbursable. Id. at 459. Permissible reimbursement may run from community estate to separate estate, from separate estate to community estate, or from separate estate to separate estate. Alsenz, 101 S.W.3d at 655. A trial court’s discretion in evaluating a claim for reimbursement is as broad as that discretion exercised by a trial court in making a just and proper division of the community estate. Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988).  

           The record shows that Daniel and Thu, “by agreement,” each submitted an inventory and proposed property division, which were admitted at trial. Once an inventory and appraisement is admitted, it may be considered as evidence before the court. See Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied). Further, this court has held that testimony alone can suffice as evidence to establish a reimbursement claim. See Sheikh v. Sheikh, 01-05-00218-CV, 2007 WL 3227683, at *7 (Tex. App.—Houston [1st Dist.] Nov. 1, 2007, no pet.) (mem. op.).

          The record shows that Thu itemized in her proposed property division that Daniel wasted $70,189.00 of the community estate as follows:

REIMBURSEMENT TO COMMUNITY/WASTE

Loan against 401K after meeting [Zhili]	$20,000
Gifts to [Zhili]	$3,055
Amex payment	$3,900
Hawaii vacations with [Zhili]	$9,776
Florida Disney trips with [Zhili]	$3,787
Husband Family Phone Plan with [Zhili]	$2,671
Reimbursement to ECCU	$27,000

          First, Daniel testified that, in March 2005, he took a $20,000 payroll loan and deposited it into a Wells Fargo bank account that was solely in his name. The same month, Daniel made three online transfers of $1,500 from that account into Zhili’s Wells Fargo account. The testimony of Daniel and Zhili shows that Daniel “surprised” Zhili with a 50-inch plasma television, valued at $2500, and DVD player. Daniel also conceded at trial that he had, since 2004, maintained a separate cellular telephone account with Zhili. Zhili testified that the purpose of the separate cellular telephones was to conceal the relationship from Thu.

          Daniel does not deny that these transactions took place. He directs us, rather, to his testimony explaining that he used the $20,000 for community purposes; that the $1,500 transfers to Zhili were actually for her to give to his mother; that Zhili reimbursed him for the television and DVD; and that Zhili paid for the cellular telephone.

          There is some evidence to support the trial court’s award for reimbursement of these items. At most, Daniel presents conflicting evidence. The trial court chose to credit Thu’s testimony. The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See Wilson, 168 S.W.3d at 819; Cain, 709 S.W.2d at 176.

          Regarding the vacations to Hawaii and Florida, Daniel and Zhili each admitted at trial that they had surreptitiously traveled together to Hawaii and to Florida, and they testified concerning the details of the accommodations and the duration of their stays. Although they each testified that Zhili paid the expenses, Zhili also testified that she was unemployed until March 2005. Zhili testified that she paid the expenses from her savings. Daniel did not dispute the amount of Thu’s claim for reimbursement; rather, he generally denied having expended any funds. Daniel contends that Thu’s testimony to support the amounts she listed in her inventory is speculative, at best, and that she failed to produce any documentary evidence to support her claims for reimbursement.

          Thu’s inventory, which was admitted at trial and properly before the court, and her testimony constitute some evidence of Daniel’s expenditures. See Sheikh, 2007 WL 3227683, at *7 (concluding that wife’s testimony constitutes some evidence of transfers from community estate). The absence of documentary evidence does not render Thu’s testimony incompetent; rather, it goes to the credibility of her testimony and the weight to be accorded it. See In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 n.2 (Tex. 1992) (stating that absence of documents to support opinions and estimates goes to weight of evidence). Moreover, Thu testified that she did not have access to some of Daniel’s financial records, and Daniel admitted at trial that he had concealed financial transactions from Thu.

          In rendering its order of reimbursement, the trial court chose to disbelieve Daniel and Zhili, and chose to believe Thu. We are not permitted to interfere with the factfinder’s resolution of conflicts in the evidence or to pass on the weight or credibility of a witness’s testimony. See Wilson, 168 S.W.3d at 827; Zagorski, 116 S.W.3d at 317–18 (stating that credibility of husband and wife in divorce action falls strictly within purview of trial court). Daniel failed to provide the trial court with any alternative, and the trial court arrived at its own estimation of the total amount wrongfully spent. See Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex. App.—Dallas 1986, writ dism’d) (concluding that husband’s failure to document transactions involving his admittedly having taken trips to Hawaii with other women gave trial court broad discretion to “arrive at its own estimation of the total amount wrongfully spent”). The trial court could have reasonably inferred that funds were wrongfully diverted from the community estate which could not be discovered because of the lack of records. See id.

          Concerning the reimbursement of $3,900 for the American Express bill, because the trial court made no separate findings of fact or conclusions of law, we must presume that the trial court made all the necessary findings to support its judgment. See Boyd, 131 S.W.3d at 612. Thu’s sworn inventory, which was admitted into evidence by agreement, constitutes some evidence to support the trial court’s award. See Barnard, 133 S.W.3d at 789. Further, Daniel has not shown that a discrepancy in this regard, if it exists, would materially affect the trial court’s property division. See Jacobs, 687 S.W.2d at 732–33; see also McElwee, 911 S.W.2d at 189 (mistake in property division at divorce which has de minimis effect on overall division not reversible error).

          Finally, the record shows that the $27,000 reimbursement is for Thu’s attorney’s fees in the first trial that resulted in a mistrial. The record shows that the trial court ordered that the amount be paid from the community ECCU account. Daniel complains on appeal of a double recovery. As Thu contends, however, Daniel does not direct us to anyplace in the record in which he presented his complaint to the trial court. As such, the point is waived. See Tex. R. App. P. 33.1.

          We cannot conclude that the trial court abused its broad discretion with regard to the reimbursement claims, as part of its overall division of the estate. See Penick, 783 S.W.2d at 198; Mai, 853 S.W.2d at 618 (stating that, under abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds, but are relevant factors in assessing whether trial court abused its discretion).  

          Accordingly, Daniel’s third issue is overruled.

Penalty

          In his second issue, Daniel contend that “[t]he trial court abused its discretion by awarding a $100,000 penalty against Daniel for wasting of community assets and fraud on the community estate.” Thu contends that there was “no money judgment” for $100,000 against Daniel.

          Daniel directs us to the trial court’s rendition of property division, which it issued prior to the Final Decree, and to statements it made on the record.

          In its rendition of property division, the trial court ordered that Daniel take $260,000 of his ExxonMobil Savings Plan and that Thu receive $570,000 of the Plan. In addition, however, the trial court ordered,

[f]or wasting of community assets and fraud on community estate: $100,000 to petitioner from respondent’s estate. Such award shall be out of Exxon Mobil Savings Plan and 401K Plan. Therefore, Petitioner shall receive $670,000 of 401K Plan as listed on petitioners I &A, Ex. 5a and respondent’s share shall be reduced to $160,000.

At a hearing on Daniel’s objections to the entry of judgment on the decree, the trial court explained, “Well, what I did was I gave them each a fairly equal and I don’t remember if it was exactly equal on his plan [sic] and as the division of the estate. And then I came back as a penalty and awarded her a hundred thousand of the estate and the rendition of the division of the estate, it was fairly equal. Then I came back as a penalty and awarded her a hundred thousand. [sic]” Daniel asked again, “So that was a penalty?” And, the trial court responded, “Right.”

          First, we cannot consider the trial court’s recitations in its rendition. It is well-settled that even recitations in the judgment itself of findings of fact and conclusions of law cannot be considered as a substitute for separately filed findings of fact and conclusions of law. Willms v. Am. Tire Co., 190 S.W.3d 796, 802 (Tex. App.—Dallas 2006, pet. denied); see also Chacon v. Chacon, 222 S.W.3d 909, 916 (Tex. App.—El Paso 2007, no pet.) (concluding, in divorce case, that prejudgment letter rulings do not constitute formal findings of fact and will not substitute as such). Such statements do not afford any basis upon which a losing party may attack a trial court’s judgment.

          Next, oral comments from the bench cannot substitute for written findings of fact and conclusions of law. See In re Jane Doe 10, 78 S.W.3d 338, 340 n. 2 (Tex. 2002). In E.A.S., the appellant complained that the trial court had improperly modified his child support obligation on the basis that the appellant was intentionally underemployed. 123 S.W.3d 565, 568 (Tex. App.—El Paso 2003, pet. denied). No findings of fact and conclusions of law were filed. Id. at 569. Rather, the appellant relied upon oral statements made by the trial court on the record, finding that the appellant was underemployed and finding the amount that the appellant had the ability to earn. Id. The appellate court refused to consider the trial court’s oral statements, concluding that such statements could not be accepted as findings of fact. Id. (citing W.E.R., 669 S.W.2d at 716). The court concluded, “We recognize that this rule may appear hypertechnical given the trial court’s comments but it is not within our province to disregard it.” Id. at 570. The court then considered whether there was evidence in the record to support the trial court’s ruling and, concluding that there was such evidence, affirmed the trial court’s judgment. Id. at 570–72 (recognizing that, in the absence of findings, trial court’s judgment must be affirmed if it can be upheld on any legal theory that finds support in evidence).

          Here, as in E.A.S., we cannot consider the trial court’s oral statements as a substitute for properly filed findings of fact and conclusions of law.

          The Final Decree before us reflects only that the trial court made an unequal distribution, in the form of an award Thu of $670,000 of Daniel’s $830,000 ExxonMobil 401K Plan. We cannot conclude that the trial court abused its discretion on the ground Daniel asserts, that is, by assessing a $100,000 “penalty” against him.

          Accordingly, Daniel’s second issue is overruled.

CONCLUSION  

          We affirm the judgment of the trial court.

                                                             Laura Carter Higley 

                                                             Justice

Panel consists of Justices Jennings, Higley, and Massengale.